Nelson v. Johnson

• Decision Date: 22 December 1925
• Parties: HUGH NELSON, by His Guardian, THOMAS NELSON, Respondent, v. EPHRIAM JOHNSON and JOSEPH JOHNSON, Appellants
• Court: Idaho Supreme Court

243 P. 649

41 Idaho 703

HUGH NELSON, by His Guardian, THOMAS NELSON, Respondent, v. EPHRIAM JOHNSON and JOSEPH JOHNSON, Appellants

Supreme Court of Idaho

December 22, 1925

APPEAL AND ERROR-EXCESSIVE DAMAGES-REQUESTED INSTRUCTIONS.-

1. Where the evidence is conflicting, but there is substantial evidence to support it, the verdict will not be disturbed.

2. Errors assigned but not supported by citation of authorities nor argued by appellant either orally or in his brief will not be discussed or considered on appeal.

3. It must be made to clearly appear that a verdict was given under the influence of passion or prejudice before, for that reason, it will be set aside as excessive.

4. It is not erroneous to refuse a requested instruction where the subject matter thereof is properly covered by those given.

5. Modification of requested instruction held not prejudicial.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge. Action for personal injuries. Verdict for plaintiff. Affirmed.

Petition for rehearing denied.

G. F Hansbrough, for Appellants.

Where the verdict is contrary to the evidence, or is manifestly or decidedly against the evidence, or clearly against the weight of the evidence, or is supported by insufficient evidence, a new trial will be granted. (20 Stand Ency. Proc. 517-520; Bagley v. Eaton, 8 Cal. 159; Payne v Jacobs, 1 Cal. 39; Roach v. Gilmer, 3 Utah, 389, 4 P. 221; Wendell v. Safford, 12 N.H. 171; Leitensdorfer v. King, 7 Colo. 436, 4 P. 37; State v. Treyo, 25 Ida. 625, 138 P. 1124.)

The damages are excessive, and the amount found by the jury is not warranted, even if plaintiff was entitled to go to a jury. (Maloney v. Winston Bros. Co., 18 Ida. 740 111 P. 1080, 47 L. R. A., N. S., 634; Chitty v. St. Louis & I. M. & S. R. Co.; 166 Mo. 435, 65 S.W. 959.)

Negligence must be proven as alleged. A complaint that alleges that an injury was committed wrongfully is not supported by proof of mere negligence. (J Elliott on Evidence, sec. 204, p. 289; Belt R. R. etc. Go. v. Mann, 107 Ind. 89, 7 N.E. 893; 107 Ind. 89, 7 N.E. 893.)

Whitcomb, Cowen & Clark, for Respondent.

Where the jury has found an issue in favor of a party and there is evidence which supports the verdict it must be affirmed on appeal. (Meeker v. Trappet, 24 Ida 198, 133 P. 117; Flynn's Digest, p. 53; Fritcher v. Kelley, 34 Ida. 471, 201 P. 1037; Mahaffey v. Carlson, 39 Ida. 162, 228 P. 793; Neil v. Hyde, 32 Ida. 576, 186 P. 710.)

A verdict for $ 3,000 is not an excessive or unreasonable amount to be allowed respondent for the suffering permanent injury and disfigurement for life as compensation, and punitive damages. A verdict will not be disturbed on the ground that it is excessive when there is some evidence to support it. (4 C. J. 871, see. 2847, cases cited Jensen v. Denver & Rio Grande R. R. Co., 44 Utah 100 138 P. 1185; Van Lyke v. Seattle Electric Co., 55 Wash 687, 105 P. 137.)

Instructions should be confined to the issue presented by the pleadings and the evidence. An instruction not meeting these requirements may properly be refused. (38 Cyc. 1612, notes and 16, 1617, note 34; Intermoutain Farmers' Equity v. Norris, 33 Ida. 685, 229 P. 745.)

GIVENS, J. Wm. E. Lee and Taylor, JJ., concur. William A. Lee, C. J., dissents.

OPINION

GIVENS, J.

This action is based on the same incidents considered in Thomas Nelson v. E. Johnson and Joe Johnson, filed Oct. 21, 1925, the only difference being that respondent herein was a minor child of Thomas Nelson, and his injuries consisted of a broken arm, broken nose, ruptured tear duet, permanently injured, two broken teeth, a drooping eyebrow, thereby giving a changed expression to his face, and a weeping eye, the latter accentuated when reading or similarly employed, for which $ 3,000 were awarded as damages.

The evidence as to whether appellant caused the accident is conflicting, but there is substantial evidence to support the verdict, and hence on that ground it will not be disturbed. (Nelson v. Johnson, supra, and authorities there cited.)

Appellant urges that the verdict is excessive. The injuries, aside from the broken arm, are of such a nature that it would be difficult for any jury to fix a sum exactly compensating respondent, but since the record does not clearly show that the verdict was the result, of passion or prejudice, or that it was excessive, the jury's conclusion will not be set aside. (Nelson v. Johnson, supra; 29 Cyc. 843.)

Appellant assigns as error the trial court's action in giving instructions Nos. 12, 20 and 13, the latter a modification of one of defendant's requested instructions, also the court's action in refusing to give such requested instruction unmodified.

Instructions Nos. 12 and 20 were not discussed orally or in the brief nor are authorities cited in support of appellant's contention that they were erroneously given; they will therefore not be considered. (State v. Petereit, 39 Ida. 715, 229 P. 747; State v. Brockman, 39 Ida. 468, 228 P. 250; Gustn v. Byam, ante, p. 538, 240 P. 600.)

The requested instruction was:

"The Jury is instructed that the plaintiff alleges in his complaint that the defendant wilfully, unlawfully and with wilful malice and gross negligence struck the car the plaintiff was riding in and caused the injury complained of, and you are instructed that to entitle the plaintiff to recover in this action the plaintiff must prove by a fair preponderance of the evidence that the defendants wilfully, intentionally and maliciously struck and collided with the car plaintiff was riding in and overturned the same and caused the injury complained of."

The court modified it by inserting the words "punitive damages" between the words "recover" and "in."

In his brief appellant urges that:

"This instruction told the jury to entitle the plaintiff to recover, he must...